September 26, 2003

Telemarketing and Judicial Activism

Two district judges struck down the Federal Trade Commissions's (FTC) proposed "Do Not Call" anti-telemarketing plan.

Same result in each case, but one was normal judicial decision-making and the other was radical judicial activism.

I have debates with different people about whether there is a neutral meaning of "judicial activism" that does not hang on a results-oriented political viewpoint, so probably nothing can illustrate what is judicial activism more than comparing these two decisions.

Simple Statutory Interpretation: Take the first court decison , the judge examined statutes passed by Congress and declared that the FTC had not been given legislative authority to create such a do-not-call registry. Instead the judge declared that the 1994 Telemarketing and Consumer Fraud and Abuse Prevention Act gave the Federal Communications Commission — not the FTC — the authority to operate a national database of those who do not want to receive telemarketing calls.

A lot of people, including people in Congress, think the judge got this wrong, but given ambiguous statutes, interpreting statutes is what judges do most of the time.

And if they make a mistake in interpreting the statute, Congress can always amend the law to overrule the judge, as they did yesterday.

Radical Judicial Activism: But the second decision is a far more radical act of judicial activism, since it declares the do-not-call list unconstitutional, since it allows charities to call people, but not telemarketers. The evolving "commercial free speech" doctrine that had developed in recent decades implies that commercial speech used to sell products should not be treated differently from non-profit speech-- even though the products themselves can be regulated or even banned.

Essentially, in order to stop "free vacation" pitches and endless telephone companies from calling your home, the court declared that the government has to kill tele-fundraising efforts by Special Olympics and other charities as well.

And here's what makes it judicial activism-- if this latter decision stands, this means that Congress could not reverse the decision. Judicial activism means there is no check on court power short of a Constitutional Amendment. Judicial activism means that a 5-4 decision by an ideologically split Supreme Court can strike down a Congressional law, and not even a unanimous vote of Congress (pretty much what you have on the do-not-call list) could override that narrow partisan decision in the Court.

BTW the whole first amendment defense of "commercial speech" is an odious addition to the Constitution that threatens not just simple consumer protections such as the "do not call" list but a host of other anti-fraud laws and regulation of corporate media operations.